1. It has often been observed that people who break their marriages for one reason or the other, when re-arrange their lives again in marriage, become prone to break it a new. Yet no arrangement better than marriage has ever been known to the civilized world, be that a sacrament as the Hindus put it, or a holy union or contract as others describe it. The married state is the ideal state from the point of view of civilization, for it is therefrom that man and women better their physical, mental, intellectual and spiritual prospects and it is in that nest that future citizens of the world grow. But pitiable is the condition of such 'break-prone' people if I may use the expression, for they identify themselves as a class apart. Yet, happily, emotional stability gradually comes to an exceptional few. Here in this matrimonial dispute is involved one such couple. Their causes are embodied in FAO No. 1-M and FAO No. 2-M of 1984 which shall stand disposed of by this common order.
2. Amarjit Paul Singh, the appellant-husband in both these appeals, is aggrieved in the first case against the order of the first matrimonial Court refusing to grant him divorce form his wife--Kiran Bala respondent on grounds of cruelty and desertion. He is also aggrieved in the other against the order of the said Court in refusing to grant him the custody of his minor son in exercise of powers under S. 26 of the Hindu Marriage Act. At the time of the marriage, which was solemnized at Ludhiana on 16-12-1979, the husband was a widower, having three minor children from his first wife--two being males and one being a female. His first wife near about 23-6-1977 committed suicide and her body was recovered from the Bhakra canal. There was a huge uproar in Patiala town by various organisations which led to the husband and his parents being prosecuted for offence under Ss. 302/34, Penal Code. After trial, they were acquitted on 31-5-1978. The State of Punjab preferred Criminal Appeal No. 1191 of 1978 before this Court which after admission was dismissed on merits by a Division Bench on 27-2-1981, of which I was a member. All these facts are available from that judgment produced in the case as Exhibit P-7. As is plain, within months of his acquittal, the husband married the wife-respondent. Now she, on the other hand, was a divorce, having married a man named Ravinder Kumar of Chandigarh. He successfully obtained a decree of restitution of conjugal rights against her which she did not comply. Later on the strength thereof, she obtained a decree of divorce against him and thus became free to marry. There was no child from that wedlock. Thus both the spouses came from broken marriages.
3. As averred by the husband-appellant in his petition under S. 13 of the Hindu Marriage Act, they lived together at Patiala after 16-12-1979. It appears that the wife was at that time employed as a clerk in the P.W. D. (B & R) Department, Ludhiana, wherefrom she obtained transfer / re-employment, within a couple of months, in order to join him a Patiala. Then she became pregnant. Allegedly thereafter her behaviour with the husband became objectionable. Allegedly she started treating the children of the husband from his first wife with contempt and hate. She even beat them very often and when asked to desist from such behaviour by the husband or his parents she would misbehave with all of them. This was termed by the husband as a cruel behaviour of the wife, unbecoming of a woman, to be insulting, arrogant and disrespectful employing abusive language. It was also averred that she refused coitus to the appellant and this was another instance of cruelty. And lastly it was stated that she had left the house of the husband with the infant child on 26-7-1980 in his absence and without his consent, having deserted him without any sufficient cause.
4. The petition was initially filed on 24-9-1981 by the time when ground for judicial separation had not ripened. An amended petition was later filed on 11-8-1982 so as to claim relief on ground of desertion as well, besides that of cruelty as originally pleaded.
5. The wife on the other hand denied the allegations of the husband-appellant. She stated that she was not aware of the husband being a widower or having children from his earlier wife as these facts were not disclosed to her by the husband. She stated that since the husband had his parental needs satisfied by the existence of those three children, he did not want her to bear a child. Further on she stated that when she became pregnant the husband administered her certain medicines secretly which caused her abortion. On the second occasion, when she became pregnant she allegedly kept the matter secret and ultimately delivered the male child. She further asserted that her son was unwanted in the family and was dubbed as an unwanted guest as the attempt made to cause abortion in regard to him had failed. And lastly she stated that she kept living in the house of the husband till 3-9-1980 evening when she went to Ludhiana on her transfer being allowed. Thus, she refuted both the allegations of cruelty as also desertion. The husband filed a replication reiterating the stance that he had taken in the divorce petition. As was expected, the learned trial Judge, on the pleading of the parties, framed the following issues:--
1. Whether the respondent has treated the petitioner with cruelty after the solemnisation of marriage? OPP.
2. Whether the parties last resided together at Patiala
2A. Whether the respondent has deserted the petitioner since 27-7-1980, if so, its effect?
Evidence was led by both the parties on those issues. The husband, besides sticking to his original claim, that his wife was cruel to him and his children on particulars aforementioned, also introduced in evidence three other instances. Those were in the form of insults offered to the husband in the presence of outsiders. This behaviour of the wife, according to the husband, caused him such mental pain and agony which entitled him to a decree of divorce on the basis of cruelty. With regard to desertion, he specifically stuck to the date of the abandonment of the matrimonial home by the wife on 26-7-1980 and in that regard to desertion, he specifically stuck to the date of the abandonment of the matrimonial home by the wife on 26-7-1980 and in that regard he had his father to support him as a P.W. Besides denying the instance of cruelty, the wife stuck to her stance that on account of cruel behaviour by the husband, she had to seek transfer from Patiala to Ludhiana which was granted to her on 3-9-1980. She led evidence of a few witnesses besides that of her father to support her case.
6. The learned trial Judge rejected the plea of cruelty, being of the view that the evidence produced by the appellant deserved rejection besides being insufficient to prove that the husband had actually been treated by the wife with cruelty. The husband was adversely commented for not having examined any of his children from the first wife to prove ill-treatment. The Court also took the view that the husband had tried to set up a new case which had not been pleaded by him in his petition, and even if the statements of Ramji Dass PW-4, Paramjit Singh PW-5 and Vijay Parkash PW-6 were to be accepted on their face value, then those revealed few instances of misbehaviour which could not be termed as constant cruelty. The Court termed them rather to be isolated incidents not reflective of the arrogance or temper of the wife towards her husband and his family members. Issue No. 2 was not pressed and was left undecided. With regard to issue No. 2A, though not specifically held, the trial Court was of the view that the wife had left the matrimonial home on 3-9-1980, but on that count alone, it could not be said that she as in desertion, especially when concededly the husband had not made any effort to bring her back and rehabilitate her in the matrimonial home. The trial Judge also adversely commented on the husband's sending a friend by the name of Vijay Prakash to know her frame of mind instead of going himself. Thus, he concluded that the mere fact that the wife was living away from the husband did not prove that she had deserted the husband Rather the trial Judge held that the husband was guilty of such conduct which had forced the wife to live away from him because she felt disillusioned in the atmosphere prevailing in the set up home.
7. When the matters were at the motion stage, the Motion Bench made an effort to effect reconciliation between the parties. On 21-3-1984 the wife on certain conditions, agreed to go and live with the husband periodically. The case was adjourned for about two months. In the meantime, as is the admitted case of the parties, the wife did go to the husband at Patiala for one week-end. Whereas the husband maintains that she was apparently pleasant but inwardly withdrawn from him, the wife contends that she was not treated properly and was rather made to fall from a scooter deliberately by the husband by which she sustained injuries. On the second week-end she did not come with the husband and in proceedings under S. 125, Criminal P. C., accused him of tremendous misbehaviour. She even allegedly refused him coitus on her first visit. Finding that arrangement too have broken, the husband filed Civil Misc. No. 2022 CII of 1984 in FAO No. 1-M of 1984 apprising his view of the facts to the Court. On the other hand the wife vide Civil Misc. No. 2206-CII of 1984 in FAO No. 1-M of 1984 applied for permission for not going to Patiala along with the husband as per the settlement. She pleaded her own set of facts. The Motion Bench ordered Civil Misc.l No. 2022-CII of 1984 to be heard with the main case. By the decision of these two cases, the said Civil Misc. Applications shall also be taken to have been disposed of.
8. Two crucial issues arise in this case: (1) whether the husband has successfully laid premises for dissolution of marriage on the ground of cruelty and (2) whether the wife deserted the husband without sufficient cause for two years immediately before the presentation of the petition.
9. So far as the ground of cruelty is concerned., it must be commented at the beginning that the husband did not comply with Hindu Marriage (Punjab) Rules 1956 framed by the High Court. Rule 4(vii) requires that the contents of the petition shall contain the matrimonial offences charged set in separate paragraphs with the times and place of then alleged commission. That rule is not only salutary but is meant to focus the attention of the court as also the parties to the precise matrimonial offence committed by the other spouse. In other words, the object of the rule is to avoid vagueness, element of surprise and chances of variation at a subsequent stage. Five in the forms prescribed in the appendix attached to the rules, such a requirement of specifying the matrimonial offences charged in a set of separate paragraphs with times and places of their alleged commission has been insisted upon Rather it is required in the forms that the facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. Yet no such effort was made by the husband in framing his original petition as also the amended petition with regard to cruelty. The instances of misbehaviour towards him in presence of the guests, as supported by the said guests--Ramji Dass PW-4 Paramjit Singh PW-5 and Vijay Prakash PW-6 were not even pleaded in the petition. Thus, these instances cannot be looked into for non-pleading. The other allegations in the petition that the wife was prone to treat the children of the appellant with contempt and hate and often beat them are too vague to be relied upon by any Court as also the alleged conduct of the wife that she was arrogant and disrespectful to the husband and his parents using abusive language against them. No instance has specifically been pleaded in the petition as to when and where all did it occur. The husband perhaps had gone on to cash on the general reputation of a proverbial step mother to be resentful and cruel to her step children. That reputation of the proverbial step-mother stands so engrained in the Hindu society dating back to the epical treatment of Kaikeyee to Lord Rama and till today the Society has not absolved the proverbial step-mother of that sin however hard she may work to atone it. Thus on these vague allegations of cruelty, there is no reason for the Court to grant him relief all the more when the wife positively asserts that when she learned that her husband had children from his first wife she rather welcomed them and was happy. Thus, the ground of cruelty fails altogether.
10. With regard to desertion, the allegation in that the wife left the matrimonial home on 26-7-1980, whereas the case of the wife is that she left on 3-9-1980. If the date of her departure from the matrimonial home is 3-9-1980, then obviously the petition has not been filed after the statutory period of two years. The law insists that the desertion by the offending spouse should be for a continuous period of not less than two years immediately preceding the presentation of the petition. Such ground had obviously not arisen on 24-9-1981 when the petition was first filed. The amended one was filed on 11-8-1982. Thus, the first point for consideration with regard to this ground is on what date did the wife leave the matrimonial home factually. My attention was invited to the surgical case sheet of Rajindera Hospital, Patiala, pertaining to the wife showing her admission on 11-7-1980 and discharged on 16-7-1980. It bears a declaration signed by the husband that he was willing for his wife's abortion for medical termination of pregnancy under any kind of anesthesia at his risk. Similarly, on the reverse thereof, is the statement signed by the wife that she was willing for tubectomy and medical termination of pregnancy with her husband's consent under any kind of anesthesia. Then her pregnancy was diagnosed on 6 to 8 weeks. It was terminated and the wife was discharged on 16-7-1980. All this shows that the husband had little concern for the health of the wife and she was pregnant again after having given birth to a son a few months back on 23-2-1980. However, as it appears, she did not get her tubectomy performed. May be this was the reason that the wife refused coitus to the husband being afraid of repeated pregnancies. The factum of being in the hospital is corroborated by the statement of Surjit Singh PW3 as he brought the applications by the wife whereby she remained on leave from 11-7-1980 to 16-7-1980 and then again for 17-7-1980 and 18-7-1980 but on casual leave on the ground that she was not feeling well. It is on 29-7-1980 vide Exhibit P-4 that she made a regular application for transfer to the higher authorities on the ground that she had left her child at Ludhiana with her parents and that it was very difficult for her to be with her child at Patiala. Secondly, she mentioned therein that her father was a patient of paralysis requiring his mother's attention, which did not spare her mother to look after her child. It is this application which, concededly, was allowed by the higher authorities and she was transferred on 3-9-1980. As a safety measure, she reported the matter to the police on 3-9-1980 vide statement, Exhibit R-4 that she was going to Ludhiana being transferred there, without taking anything from her husband's house. Now on this point whether the wife left the matrimonial home on 21-7-1980 or 3-9-1980, there is just a word against word. It goes without saying that the wife did keep attending the office at Patiala till she was actually transferred on 3-9-1980. It has come in evidence that she had a sister at Ambala with whom she was on visiting terms. The father of the wife, Karam Chand, as RW-7 and her sister's husband Joginder Mohan RW-6 were specifically put the suggestion that from 21-7-1980 till 3-9-1980 the wife was living either at Ambala or Ludhiana, but they strongly refuted the suggestion. No neighbour of the husband has come forward to support him to say that during that interval his wife was not living with him. His bare word round counter to the probabilities. When the wife was working at Patiala till 3-9-1980, the presumption is that she was living under the roof of her husband till proved to the contrary. The mere fact that she had left her child at Ludhiana earlier to 21-7-1980 is of no consequence, for single-handed as she was, and a working girl, she had to leave her child in proper hands. In her own matrimonial home, no such hand seemingly was available, her husband being an employee himself and her step children being minor and school going. Thus, from the evidence, I am of the considered view that factually the wife left the husband's house on 3-9-1980 and not earlier. On that finding, his petition under S. 10 of the Hindu Marriage Act is premature, for it was filed before the expiry of two years of the presentation of the petition (sic).
11. Learned counsel for the husband on the strength of Buchler v. Buchler (1947) 1 ALL ELR 219 attempted to bring in constructive desertion of the wife in her leaving the child at her father's house prior to 21-7-1980 and thus construe as if mental desertion had taken place prior to that date so as to bring the petition within, the time ambit. It seems to me that the learned counsel has totally misunderstood as to what is constructive desertion. It is a defence open to an offending spouse accused of the matrimonial offence of desertion. The wife cannot be cumulatively accused to desertion as also construction desertion.
12. The husband is not entitled to any relief. His marriage with the respondent is still mendable and not to be ended so soon as he would wish it. Let him and his wife be the exception to the 'break-prones' and wisely put their heads together for the sake of all the children whose primary need is a stable home and not a broken one. This, of course, is a wish, which this Court expects would not fall on dead ears.
13. For the foregoing reasons. FAO No. 1-M of 1984 as also Civil Misc. No. 2022-CII of 1984 and Civil Misc. No. 2205-CII of 1984 fail and are dismissed. Since the minor son of the parties is yet an infant, hardly five years old, his interests lie yet in being with the mother. Accordingly, FAO No. 2-M of 1984 is also dismissed. No costs in either of the two cases.
14. Order accordingly.